Winning an Indefinite Suspension Appeal before the MSPB

By
The Solomon Law Firm, PLLC
|July 24, 2012

Can the MSPB help if I was Indefinitely Suspended?

Most federal employees go to work for the same reason the rest of us do
– to make a contribution, meet personal financial obligations, and
save for retirement. There has been a recent trend for employing federal
agencies to review the credit worthiness of employees and to take adverse
employment actions against federal employees with poor credit or outstanding
financial obligations, most notably, for unpaid taxes. This is especially
true for Internal Revenue employees and other Department of the Treasury
employees.

If you were recently told by your employing federal agency that your financial
circumstances disqualify you from holding a sensitive position, and that
they would suspend, or terminate your employment, it is imperative to
respond quickly and aggressively. You may have a limited opportunity to
respond to the notice of proposed removal or proposed suspension. In the
case of an indefinite suspension, the time period for an appeal to the
Merit Systems Protection Board is also time sensitive.

A
federal employment attorney or representative familiar with litigation before the Merit Systems Protection
Board can assist you in overturning an indefinite suspension. In the last
month, the
Merit System Protection Board has overturned two indefinite suspensions for financial related offenses
by the Department of Defense, alone.

In the cases of LaTonya Marie Hall and Carolyn Williams, each federal employee
was informed that they would be indefinitely suspended because the Agency
received information that they had a history of not fulfilling financial
obligations which warranted a revocation of access to classified information
deemed necessary to perform their job duties. In the case of Carolyn Williams
the Agency also alleged that her efforts to mitigate the damages caused
by her financial history were not sufficient to overcome a suspension.
Both women filed appeals with the Merit System Protection Board, arguing
that their jobs did not require a security clearance or access to classified
information and thus an indefinite suspension was improper.

To sustain an
indefinite suspension the Board has held that an Agency must establish one of the following:

1. A reason sufficient for the Board, including:

A reasonable belief that the employee has committed a crime for which a
sentence of imprisonment can be imposed;

A medical condition makes a federal employee’s presence at work dangerous
or otherwise inappropriate; or

A security clearance or other access to classified information has been
terminated and the access or security clearance level was necessary to
perform the essential function of an employee’s position.

2. The suspension can be cancelled by an employee meeting some condition
or criteria to overcome the reasons for the suspension;

3. The suspension bears a nexus to the efficiency of the service; and

4. The penalty is reasonable.

In the cases of Ms. Hall and Ms. Williams, the Agency placed them on indefinite
suspensions on the grounds that they were denied access to classified
information as a result of their respective financial histories. The Department
of the Army argued that without a security clearance they the federal
employees would not be able to perform their job duties. In both cases,
the Board found that while the Appellants’ positions were classified
as “sensitive,” their job descriptions did not require security
clearances or access to classified information.

In other words, even if the Department of the Army employees were denied
access to classified information, it would not have barred them from adequately
performing their job duties. The Merit Systems Protection Board subsequently
ordered the Army to cancel the suspension in each case.

Only a qualified federal employment attorney can assess the merits of your
case to determine if your indefinite suspension can be appealed to the
Merit System Protection Board. If you were indefinitely suspended, a Federal
Employment attorney with the Solomon Law Firm, PLLC can assist you with
your MSPB appeal.